On 5 October 2017, McCallum J published reasons in Commissioner of the Australian Federal Police; application under the Proceeds of Crime Act (N0 2) [2017] NSWSC 1402.
The decision concerns an important procedural point.
The Proceeds of Crime Act 2002 states that a court “must” make a restraining order if certain conditions are satisfied: sections 17, 18, 19, 20 and 20A.
In those circumstances, the Commissioner contended that the court should not adjourn the application for the restraining order to permit the person asserting an interest in the property to obtain legal representation.
Her Honour rejected the Commissioner’s contention and observed (at [6]-[7]):
On behalf of the Commissioner of the Australian Federal Police, it was submitted that the application should proceed today since it is unknown when the position will be settled regarding any legal representation. The solicitor for the Commissioner noted the relatively limited discretion the Court has under s 19 of the Act to refuse to make a restraining order. Indeed, it is not accurate to describe any part of the Court’s task under that section as a discretion, since the section provides that, if certain matters are established by the evidence, the Court “must” make a restraining order sought by a crime authority.
In my respectful opinion, that is beside the point on the issue of the interested party’s entitlement to be represented and, if anything, emphasises the importance of a fair process. It may well be that, properly advised, Mr McCormack will take the view that he has no basis for opposing a restraining order at this stage. It does not follow that he is not entitled to due process. It is a critical feature of a fair system of criminal justice that its processes and incidents (including the forfeiture of assets) be conducted fairly, “in accordance with the judicial process”, particularly when dealing with an unrepresented prisoner who has been in custody on remand for some 22 months.
It follows that, notwithstanding the prescriptive language of the Proceeds of Crime Act 2002, which mandates that a Court must make a restraining order, a court can adjourn such an application to afford procedural fairness.
